Advocates:
['Jyotika Gupta', '', 'Ajeet Pal Singh Jaswal', 'Abhinandan Thakur', 'NEMO', '', 'Romesh Verma', 'Bhagwati Chander Verma']

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 23^rd DAY OF APRIL, 2022

BEFORE

HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN

FIRST APPEAL FROM ORDER NO.269/2019

BETWEEN:

YUVRAJ MOHAN AZAD,

SON OF LATE SHRI JHURA RAM PRAKASH,

RESIDENT OF PANTA NIWAS, PANCHHI AHATA,

KHALINI, SHIMLA-171002 (HP) AT PRESENT

RESIDENT OF HARI PRABHA NIWAS,

BELOW SIRTAJ COMPLEX, KARYAN, MEHLI,

DISTRICT SHIMLA (HP)-171 013

….APPELLANT

(BY MR. NEERAJ GUPTA, SR. ADVOCATE

WITH MR. AJEET PAL SINGH JASWAL, ADVOCATE)

AND

SH. GOVERDHAN SINGH,

SON OF SHRI DEVI DASS,

RESIDENT OF VILLAGE SUNDLI,

P.O. AND TEHSIL JUBBAL, DISTRICT SHIMLA (HP),

THROUGH HIS GENERAL POWER OF ATTORNEY

SHRI RAKESH DHAUTA, SON OF SHRI GOVERDHAN

SINGH, RESIDENT OF VILLAGE SUNDLI,

P.O. AND TEHSIL JUBBAL, DISTRICT SHIMLA (HP).

...RESPONDENT

(MR. G.D. VERMA, SR. ADVOCATE

WITH MR. B. C. VERMA, ADVOCATE)

__________________________________________________________________

The appeal coming on for admission after notice this

day, the court passed the following:

O R D E R

2

Aggrieved by the impugned order dated 16.5.2019

rendered by the learned first appellate court, whereby it has

ordered wholesale remand of the matter after setting aside the

judgment and decree passed by the learned trial court, the

plaintiff/appellant has filed the instant appeal.

2

The plaintiff filed a suit for possession and permanent

prohibitory injunction against the defendant/respondent on the

allegations that he is owner in possession of the land comprised

in Khasra No. 415/3, measuring 3-01-56 hectares, situated in

Mohal Shiv Nagar, Tehsil and District Shimla and the defendant

is owner of the adjoining land comprised in Khasra No. 415/2.

3

As regards building plan of the appellant, the same

was approved by the Special Area Development Authority on

21.7.2005, whereas that of the respondent was approved later

on 8.8.2006. It was alleged that in the month of February 2006,

which was one day before the date fixed for demarcation, the

defendant in absence of the plaintiff encroached upon the suit

land by constructing the boundary wall and thereby covered

the set-back area of the plaintiff mentioned at points A, B and C

in the map. Hence, the suit.

4

The defendant contested the suit by filing written

statement, wherein it was averred that the construction raised by

him was as per sanctioned plan and it was denied that the set-

back of the plaintiff was encroached by him. On the other hand,

3

it was claimed that the plaintiff had raised the construction

without leaving any set-back area. The boundary wall was raised

in the month of August 2002 and not in the year 2006 as alleged

by the plaintiff. It was further averred that the demarcation given

by the Field Kanungo on 9.2.2006 was correct, but the plaintiff

did not agree to the same. Besides, he also took preliminary

objections

regarding

cause

of

action,

estoppel,

improper

valuation, non-identification of the land, non-joinder of necessary

parties and locus standi.

5

The defendant also filed counter claim seeking to

restrain the plaintiff from causing any damage to the building of

the defendant, situated over Khasra No. 415/2. It was further

averred that the plaintiff had started plastering work, white wash

etc., which was damaging his building.

6

On the basis of the pleadings of the parties, the

learned trial court on 12.11.2008 framed the following issues:

1) Whether the defendant has encroached upon the suit land,

as alleged?..OPP.

2) If issue No.1 is proved in affirmative whether the plaintiff is

entitled for the possession of the encroached portion of the

suit land, as alleged? OPP.

3) Whether the plaintiff is entitled to the relief of permanent

prohibitory injunction, as prayed for? OPP.

4) Whether the plaintiff has cause of action to file the present

suit? OPD